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April 16, 2005

4th Circuit opines on Shepard and the prior conviction exception

On Friday in US v. Washington, No. 03-4867 (4th Cir. Apr. 15, 2005) (available here),the Fourth Circuit had an opportunity to discuss the Supreme Court's recent Shepard decision in the course of an appeal which raised issues concerning "the scope of the 'fact of a prior conviction' exception to the Sixth Amendment protections outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, including United States v. Booker, 125 S. Ct. 738 (2005)."

In a divided 2-1 opinion in Washington, the Fourth Circuit holds that because "the sentencing court relied on facts outside the indictment" of a prior offense which "involved more than the 'fact of a prior conviction' exempted by Apprendi from Sixth Amendment protection," it followed that "Washington's sentence was imposed in violation of his Sixth Amendment rights." The majority in Washington stressed that the sentencing judge found facts about a prior offense, and concluded that Shepard indicated that such fact-finding about a prior conviction was constitutionally problematic.

In a lengthy dissent, Judge Luttig contends "district court's enhancement of Washington's sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington's prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction."